Employment Standards FYI – Rest Periods

This post is a quick primer on the subject of hours of work and rest periods for provincially regulated employees in Ontario.

The Ontario Employment Standards Act (“ESA”) has several rules regarding hours of work for employees, including permitted length of shift, time off between shifts and time off during a work week. See my past blog posts on the intersecting areas of overtime and breaks.

The fine print: As with the overtime and breaks rules, the rest period minimum requirements of the ESA are minimum requirements. If your collective agreement, contract or workplace policy provides for greater entitlements, those will be the contractual entitlements that apply. The below discussion sets out the minimum floor of entitlements, but these entitlements may be modified by contract if greater benefits directly related to the same subject matter are provided. There are many cases analyzing what is a greater benefit, and whether we are comparing apples and oranges of contract provisions, so, as always (cue the disclaimer), this blog post is a general discussion that may not apply to every situation or contract.

Daily Limit

For most employees (as always there are exceptions) the number of hours they can work during a day is 8. It is permissible for an employer to require that the employee work beyond this, but in this case the agreement must be in writing and the employee must be provided with an information sheet about hours of work and overtime pay before the agreement is made.

Weekly Limit

For most employees the weekly limit on hours of work is 48. The same work around as above is permitted, but, in addition, the employer must obtain approval from the Director of Employment Standards. While approval is pending, hours of work may exceed 48, up to 60 hours, so long as certain conditions are met during this decision period.

Rest Between Shifts

Generally employees must receive at least eight hours free from work between shifts. This is true whether shifts are “split shifts,” “on call shifts,” “back-to-back” shifts or ordinary daily shifts.

Rest between shifts is not required under two circumstances, if:

The total time worked during both shifts does not exceed 13 hours. This is common in the restaurant industry where, for example, a server works a three hour lunch shift from 11:30 to 2:30 and then a three hour dinner shift from 4:00 to 7:00; or

The employer and employee agree in writing to reduce or forego the eight-hour rest period.

Note that while an employee can agree to waive the rest between shifts requirement, they cannot waive the daily rest requirement, discussed next.

Daily Rest

Regardless of the length of their daily shift, or shifts, an employee must have at least eleven consecutive hours free from performing work in each “day.”

A day means a 24 hour period but does not have to correspond with a calendar day. For the purposes of this rule, an employee’s day starts at the beginning of their first shift and ends 24 hours later.

Weekly and Bi-Weekly Rest

In additional to all of the above, employers must provide employees with 24 consecutive hours free from work each week, or 48 hours free from work in every period of two consecutive work weeks.

If an employee does not receive 24 hours free from work in a week, the employee must receive 48 hours free from work the following week. This one can get a little bit tricky, so if this is a situation that arises in your organization, you may want consult a lawyer or take a look at the Ministry’s information on this topic, which can be accessed here.

Exceptional Circumstances

In ESA defined exceptional circumstances an employee can be required to work more than the daily and weekly limits, or during required rest periods. The ESA’s exceptional circumstances rules only apply when it is necessary to avoid serious interference with the ordinary working of the employer’s operations.

Examples are an emergency, a natural disaster, an accident or breakdown of machinery requiring urgent repair or an unforeseen event that would interrupt the continued delivery of essential public services or a continuous process.

Rest periods and hours of work are a very technical area of the ESA, full of exceptions and variables. These requirements do not apply to every class of employee. For example, IT professionals and management employees do not receive these protections. Check out the Ministry of Labour’s user friendly tool for determining which employment rules apply to which jobs. For the more complex or muddled situations in your workplace, give us a call.